Obama's Dilemma -- Torture, Accountability and Partisanship

The information that is being released now regarding interrogations of suspected terrorists conducted by the US during the last several years makes it clear, for those who did not yet understand, that America does not torture, except of course when it does. The treatment of prisoners during the Bush years is a stain on the moral standing of the US which the rest of the world will not easily forget. These policies have undermined our credibility and ethical position while doing little to ensure our safety.

The primary defense of the interrogation policy, which in the name of calling things what they actually are, I will refer to as torture, put forth by defenders of the previous administration, most notably former vice-president Dick Cheney, has been the ticking bomb scenario. This defense poses the dilemma of whether or not we should torture somebody if we knew the subject had specific information about a specific and imminent threat to the US.

This relevance of this argument rests on two somewhat shaky premises. The first is that the detainee being tortured would always tell the truth rather than simply say anything to stop the torture. The second premise is that the detainee would always have knowledge of an imminent terrorist threat. It is difficult to know the extent to which either premise is true. Evidence suggests that people will say anything to stop the intense pain of being tortured, while the pattern of US interrogation suggest that while the subjects of the interrogation were often terrorists for whom I certainly have no sympathy, it is unlikely that the ticking bomb scenario applied each time they were water boarded or otherwise tortured.

The notion that the US shouldn't torture people and that we are a better country than that runs very deeply for many Americans across the ideological spectrum. If we truly believe this notion, it seems that there are at least two ways we could demonstrate this. The first would be to pound our collective rhetorical fist on the table and loudly exclaim "America doesn't torture". The second would be to hold those who led us down the byzantine legal and political path to torture accountable for their actions. The former approach might briefly make us all feel better, but the latter is far more likely to show the world and ourselves that we really are a better country than we have shown in recent years; and that we are a country of laws and accountability.

The politics and modalities of this process are not simple, but they are not so difficult that they preclude doing what is right for our country. A congressional inquiry, blue ribbon bipartisan panel or special prosecutor are all possible ways to seek accountability on this issue. It is also not yet clear who should be held accountable, the individuals who committed these acts, the lawyers who presented the, excuse the pun, tortured legal reasoning for turning us into a country that tortures, or the higher ranking politicians who are supposed to be responsible for what goes on in their departments and their governments. There are no obvious answers to any of these questions, except that it would be wrong to do nothing.

The hesitancy of the Obama administration seems to originate in a healthy desire to look forward and move beyond the disastrous previous administration, but these worthwhile ideas will end up sending the message that twisting the law around and torturing people is ultimately acceptable. There is, however, one additional, and thus far unspoken, issue which may be a concern for the current administration. There is a precedent which will be set by any legal steps which the new administration might take. Part of that precedent will be that people who break the law, even if they hide behind flimsy legal thinking, will be held accountable, but that is not the only precedent which will arise from efforts to prosecute.

For Obama's political opponents, who have spent the last four months attacking the new president, calling him a socialist, and accusing him of compromising our national security simply for having the temerity to revisit failed policies from recent years, the precedent will be a different one. Opponents of the president will see these prosecutions as license to prosecute members of President Obama's administration when they leave office, whether or not they have broken any laws. This is an unfortunate reflection on the state of partisan politics in the US, but it is real and makes the decision about what to do about those who authorized torture, just a little more difficult.

The solution for Obama is to address this concern directly and to leverage his popularity and broad support into getting bipartisan buy in for some way of holding some of the torturers accountable, making it more difficult for this issue, which goes to the core of what America is, to devolve into simply partisan noise. This solution will not be perfect and will not satisfy everybody, but will allow us hold some people accountable and demonstrate that torture is not okay in the US, while not allowing those on the political fringes to cripple our political system through future unfounded legal retributions.

Comments

[ClintBMD]

To complicate matters further:

Surely the Bushies knew that torture yields results proffered in order to stop the abuse. Consequently I don't think they were even in pursuit of the truth - they were in pursuit of admissions to bolster their case against Hussein.

So we not only tortured, we seem to have tortured to educe lies to justify a war. If this is right, this situation will go from very bad to much, much worse.

[BluestateGuyInTX]

You say: "Opponents of the president will see these prosecutions as license to prosecute members of President Obama's administration when they leave office, whether or not they have broken any laws." If members of Obama's administration are not guilty of anything then this will be just one more twisting of the law for partisan aims. How would not prosecuting misusing the law prevent future misuse of the law? If anything it would make it more likely.

Investigate and prosecute. Just do it.

[Whistlestar]

President Obama is attempting to follow a Lincolnesque script (remember he read Kearns Goodwin's "Team of Rivals") walking a middle road between fanatics on both sides of horribly complex political, legal and moral issues to lead the country slowly towards a "more perfect union." It ultimately did not go so well for Lincoln as he died a tragic martyr to his attempted moderate, yet ultimately revolutionary progressivism. And we took another 100 years to accomplish the legal civil rights due our African-American citizens and still struggle with true equality. Yet in spite of all the historical injustices and delays, we have made progress in race relations and hopefully will continue to do so.

Torture is wrong if anything is wrong - to paraphrase Lincoln, and horrible conflict can come from addressing institutional evil. I am agonizing over the right response to the revelations coming forth that we apparently tortured to extract confessions justifying our ill-conceived war in Iraq. I hope and pray that we will find the right way forward and that way is best guided by recourse to the process of Constitutional government. We have already accomplished an electoral repudiation of bush/cheneyism. Obama may just be the next Lincoln and would be even greater than Lincoln if he can help us move forward towards that "more perfect union" without Civil War and his own ultimate self sacrifice.

[Dailykook]

Here's a great article that applies to this partisan expedience:
http://www.washingtonpost.com/wp-dyn/content/article/2009/04/24/AR2009042403339.html

[J G H]

By failing to prosecute, Obama is expanding Nixon's (false) dictium that if the President does it, it is not a crime. This would now be, if the President approves it, it is not a crime. (Actually, given the ambiguous role of Cheney in the matter, it might even be, If the Vice President approves it, it is not a crime) Add to this the degree of secrecy which the Bush/Cheney team achieved removed even the last resort accountability of answering to an informed electorate.

Torture cannot be justified morally or legally by the "it works" claim. It is wrong, and it must be pursued. I have a small amount of sympathy for some of the small fry who were involved, but the senior personnel, including CIA directors, Cheney, possibly even Bush, must be prosecuted if they had any role in approving, directing or ordering torture. If Democrats were involved, they have to go also.

I am a bit amused that Republicans who hate Pelosi are depending on her possible involvement to shield themselves.

[WTF1956]

No-JUSTICE IS BLIND-take 'em all down. WE MUST SHOW THAT NO ONE IS ABOVE THE LAW. SHIELD NO ONE.

[AgnesBankhead]

president obama has the gargantuan task of preventing the republicans from turning this issue into the political football pass that they so desperately need to intercept in order to rile up their base of bible-thumpin', gun-totin', flag-wavin' amurkins

he MUST wisely oppose any senate, congressional or independent investigation that could be turned into a rightwing free-for-all which would intentionally compound and exacerbate the damage they have already done to this country over the last 8 years - he has not once ever said that the bush administration should not be held accountable and, in fact, seems intent on providing all the necessary evidence to do so

and therein lies the key - a legal, forensic, by-the-book, non-political case must be made in a court of law outside of the reach of republican miscreants who will stop at nothing to derail the process into utter chaos and perhaps even a second american civil war

frankly, i think spain has the right idea - bush and his cronies should be held accountable by the world for what they have done to the citizens of many countries - and, of course, there is always the world court at the hague in the netherlands

accountability for bushco's criminal and immoral outrages is NOT a political matter -- it is a legal matter of facts and justice

[bowser]

The justice department under bush was already prosecuting based on politics. Giving the Bush administration a pass will not stop them; knowing they will be held accountable later is the only chance. Remember that the same arguments were used to look forward after Water Gate and Iran Contra. The fact that no one was held accountable led to greater abuses.

When I was in thew army we were constantly reminded that illegal orders were not to be followed. Every idiot knows torture is illegal, waterboarding is specifically named as torture I say prosecute everyone involved (England was already prosecuted).

[ConnieInCleveland]

Yesterday on Sunday morning shows, they had people like Karl Rove, Peggy Noonan telling people to move along. Generally MSM just changes the story. They start a new news cycle and we just move along. Torture has been different, people stopped moving along. So yesterday they came on and told us point blank, "move along". Peggy Noonan talked in a soft voice about the need to move along and not re-examine the Bush administration. Then she softly stated she wants to see more investigative journalism in the future? How convenient, George W. get's a pass and President Obama get's the microscope.

By the end of yesterdays news cycle, they were over zealously were promoting Swine Flu. They have moved us along. Swine flu, swine flu, swine flu. Torture, nothing to see there, move along! Swine flu, swine flu, swine flu, fear, fear, fear. Controlled by fear. The more things change, the more they stay the same. Nothing to see here, move along and we do. We have moved along to swine flu.

[timberdoodle]

The outside world is watching and listening. Right now they see an entire political party staunchly behind the use of torture. This of course is the Republican Party.

This tells the world that unless the GOP disintegrate it is only a matter of time until the United States elects these party officials into power along with their ideology.

In any event right now it is quite apparent America has two justice systems one for the haves and one for the have nots.

[freddiefreeloader]

You got to remember though, those right wing extremist that are running aroud Afghanistan with their assault weapons would'nt hesitate five minutes before torturing Americans.

[wmfor]

This is your excuse? If the most evil people we know of can do something, then that gives us a free pass? This is known as a complete lack of morality, and I for one do not understand why those who trumpet their Christianity on every streetcorner are so eager to throw our nation's conscience to the winds.

The existence of serial killers does not serve as an excuse for someone who committed only one murder. So the "Johnny did it too" argument still doesn't play outside the kindergarten school yard.

[WTF1956]

Wait a minute, not so fast, DON'T FORGET ABOUT THE DEMOCRATS ON THAT COMMITTEE WHO BRIEFED ABOUT THIS they are just as guilty....­..........­..........­.

[kimleehan]

I just looked up the word complicit--- Choosing to be involved in an illegal or quetionable act, -- Do you realy believe the Democrates would choose to torture someone, If Bush briefed the democrates on torture and thats questionable, it was to do exactily what your doing right now, and your living proof that its working.

[WTF1956]

We do need to send a message to the world that none of the guilty from the field operatives who carried this out through the legal eagles who tried too make seem ok at the time to Bush, Cheney and Rumsfeld, to Pelosi, Rockefeller and any one else who were briefed about this but did nothing. I say they are all equally guilty. Bring on the Truth Commission. Rememeber Justice is blind.

[TheLearnedEnglishDog]

It looks like most of the torture was supposed to link Iraq to 911. Bush's intentional lies and ulterior motives for going to war are the root cause of all of this

[maxgen1]

Bingo!

The author says the relevance of the ticking bomb argument rests on two somewhat shaky premises. The first is that the detainee being tortured would always tell the truth rather than simply say anything to stop the torture. The second premise is that the detainee would always have knowledge of an imminent terrorist threat.ticking bomb scenario. The relevance rests on two somewhat shaky premises. The first is that the detainee being tortured would always tell the truth rather than simply say anything to stop the torture. The second premise is that the detainee would always have knowledge of an imminent terrorist threat.

He left out one probable real (political) reason for the torture: to induce the victim to confess to a lie, that there was a legitimate ticking bomb threat. People being tortured will often confess to anything to prevent the pain.

[serena1313]

Torture is not a policy disagreement; it is illegal, period. Yet conservatives oppose investigations premised on the following reasons:

Torture is effective: is refuted by interrogators, reports, Constitutional lawyers, Armed Services, US AF, US navy, FBI Director Robert Mueller, etc...

Torture make us safer: 1) many foreign fighters said they came to Iraq because the torture and abuse of prisoners Abu Ghraib & Guantanamo 2) resulted in more US deaths 3) # 1 recruiting tool for al_Qaeda.

Political vendetta: Republicans would rather us forget that after Clinton left office they called for a special prosecutor to investigate Clinton's pardons, indict Janet Reno, etc. which qualify as policy disagreements.

Torture is not a policy disagreement; it is illegal. The US convicted and executed Japanese soldiers for waterboarding US POWs.

Despite all evidence to the contrary and that we are legally obligated (113C of the US Criminal Code, the War Crimes Act, Geneva Conventions, UN Convention Against Torture, Article VI of US Constitution, UCMJ) to prosecute -- conservatives still say No.

[R2D2-51]

There is no question that this nation has been derailed, and I see minimum effort to right the tracks and get the engine going in the right direction. Change we can believe is, is rubbish.

[R2D2-51]

The torture program was used to extract false information, since its common knowledge torture will yield “an answer, many answers, or any answer to get the pain to stop” a quote directly from a top Pentagon lawyer. Meaning OLC was already getting memos from service branch Jag’s stating torture yields unreliable information, water-boarding is torture, torture is illegal before the Bybee memo. One must wonder what in Gods name were these people trying to achieve having their yes men draft memos contrary to Pentagon Jag’s memos and common knowledge water-boarding is torture and torture won’t give you reliable intel?

They weren’t trying to keep us safe any more than the man on the moon. Bush and his inner circle were the architects of a criminal conspiracy to give a green light for what they knew were illegal under US Code and Treaty, to torture and humiliate Muslims that became efficient terrorist recruiting tools making us much less safe, while allowing our brave soldiers to take the heat and prison time for their own criminal indiscretions. This was done in absence of WMD to ultimately backfill evidence to make an Al Qaeda/Hussein connection to save their own butt from a war of aggression based on a series of lies.

Time is wasting, as Eric Holder and the International Tribunal for War Crimes will have a field day with these criminals, who clearly brought shame, dishonor and disgrace in our name to the whole world.

[Rog49Thomas]

Lincoln, how sadly partisan of you to advocate applying the law to Republicans.

It's right there in the Constitution and perhaps even in the Bible that Republicans aren't subject to the law.

[Eidolas]

They'll need to apply it equally to ranking Democrats who were well aware - For example, Nancy Pelosi.